Department Size. There are between 230-250 officers in Topeka; several years ago the traffic unit was cut from 40 officers to approximately twelve, and seven of these officers deal with DUI enforcement. There is also an Alcohol Safety Action Project (ASAP) where officers work overtime or compensatory time and assist in looking for DUI suspects.
State Laws. BAC limits are 0.08 in Kansas.
Training. The person contacted has been a standardized field sobriety testing instructor for 18 months. With respect to surveillance, he uses the standard cues like weaving in a lane, estimating 75% of DUI offenders display at least one of the standard detection cues, and he also uses a lot of moving radar and makes stops for speeding. He reports not all the officers in Topeka are trained on detection cues. However, they are trying to catch new officers coming into recruit school and to train them with at least an 8 hour mini-training course during "DUI detection day," where the officers are given instruction, and watch videotapes to train them in detecting and handling DUI suspects.
When asked about observing specific detection cues which might relate to certain "groups" of DUIs (age, sex, vehicle type), the officer contacted had never thought about if certain detection cues were prevalent for particular groups of drinking drivers. He thought possibly the older drivers who might have drinking problems might drive slower and seem to be overly cautious. He thinks most officers look for signs of alcohol or drug involvement at crash scenes, or at least they are "getting more officers aware" with the BAT van.
When they first got the BAT van, there was cynicism because officers thought processing DUIs was too much work. Now there are officers making DUI arrests that he thought would not make those kinds of arrests, because they can call for the BAT van. This means the traffic officers can take over DUI arrests at the scene, at another officer's request, or at least can offer substantial assistance in processing DUI suspects. The reason the BAT van officers are permitted to become so involved is to allow more officers to make DUI stops and then get back out on the street without the long processing time required for DUI suspects. Those officers do not have to complete all of the paperwork that they are not familiar with, etc. and arrests have increased because the other patrol officers are utilizing the BAT van more. They had approximately 100 more DUI arrests last year than the previous year, even though the number of officers in the traffic unit had been cut.
There is no set DUI probable cause threshold when a DUI suspect would be pulled over (e.g., certain number of detection cues, length of time following a vehicle); it is up to the officer's discretion.
Enforcement and Apprehension. There is a three year grant, now half over, that supplies a mobile BAT unit. The unit is a full-size windowless, cargo-type Chevrolet van equipped with a video camera, and a BAT as well as standard red lights, siren and radio. The van is in operation 6 days a week; normally Monday through Saturday. The van is on patrol and also backs up the other police officers if a DUI suspect is stopped. There are two other BATs in two DUI rooms at police headquarters which can also be used for breath testing. There are six motorcycles available for traffic enforcement, but these are typically not used for DUI enforcement. Topeka does not have computers in patrol cars yet. They have two video cameras; one in the BAT van and one in an enforcement unit. If possible, officers will tape a DUI suspect's driving before the stop.
Two anti-DUI officers, one of them usually in the BAT van, work from 8:30 p.m.- 4:30 a.m. Another unit is also on DUI patrol, typically from 10:30 p.m. - 6:30 a.m. They believe these are the best hours to arrest DUIs. The taverns and bars close around 2:00 a.m. They mostly use roving enforcement, often around the tavern areas or areas of frequent crashes. Sometimes, stationary surveillance is used around the tavern areas. They also have an anti-crime team (ACT) and SCAT (street crime unit) which mainly deal with drug enforcement. Apparently, these units have more police officers while traffic resources have been cut "considerably" during the last couple of years. When ACT and SCAT set up driver license check lanes, the officers look for DUIs as well. There have been one to two check lanes a month, less during the winter months. Check lanes may be set up any night of the week, and sometimes they have found mid-week is productive. When check lanes are set up, it is required that notice be posted 8 or 16 hours in advance. The media are not notified directly; but the notice is posted in a public access area at police headquarters, so anyone could come in and find out potential check lane locations.
If an officer starts a pursuit, the officer must call in the violation or reason for the pursuit, where the pursuit has started, and must call for a helicopter. One other unit, the closest one available to the pursing officer may assist with the chase until a helicopter takes over. If a helicopter is available and responds, the pursuing officers must break off pursuit once the helicopter has located the fleeing vehicle. The helicopter will continue the chase and call in the location of the vehicle. The pursuing officers will continue to follow, but at a distance.
This policy was developed in hopes that once the patrol cars have stopped the pursuit, the suspect will slow down and not be a hazard to public safety. If a helicopter is not available, only the two units described above are allowed to run with lights and siren; again, this is to reduce the chances of crashes. Other units may enter the area on a non-emergency status to assist, but cannot pursue unless given authorization by a supervisor to run lights and siren.
Field Investigation. The policy for Topeka police officers is to call in all traffic stops with the vehicle description and location. When approaching the vehicle, the officer will ask the driver for a driver's license, noting how the person retrieves the license (if the person passes over it or fumbles). Then the person will be asked to recite his or her current address so the officer can listen for slurred speech or smell the odor of alcohol, if that hasn't already been detected. The officer will look at the person=s eyes for signs and will generally watch how the person responds. The suspect will be informed as to why the stop was made (e.g., speeding, weaving) and might be asked if he or she had been drinking that evening. The officer we contacted reported the usual response is two beers, or the person had something earlier in the evening, or that the person had not been drinking.
Depending on how the person has reacted, the officer may ask the person to remove the keys and step out of the vehicle at that point, or may wait for the backup unit to arrive. There are portable breath testing units available for officers to check out. The officer might do a horizontal gaze nystagmus on the person while the person is sitting in the vehicle, or later during other field sobriety tests. The officers also use a one leg stand test, and a walk and turn test. If the BAT van is on the scene, the field sobriety tests will be videotaped; if not, the field sobriety tests might be conducted without taping. The suspect would then be taken to police headquarters where there are video cameras and the tests might be conducted again while taping.
Arrest and Transport Violator / Post Arrest Investigation and Processing. The suspect is arrested, patted down, and handcuffed at the scene "99% of the time." Department policy is to handcuff before transporting. This is important in the BAT van due to close quarters, but is also done when transporting in a patrol car with a cage where the person is handcuffed, placed in the back, seat belted and transported to headquarters. If a suspect is combative, a unit with a cage will be used and the person would be transported directly to jail.
When a patrol officer calls for the BAT van, it would depend upon the officer's experience in making a DUI arrest whether that officer would conduct the field sobriety tests, place the person under arrest and begin the necessary paperwork, or wait for the BAT van and have the DUI traffic officers take over the entire procedure including the arrest. If the BAT van is on the scene, the suspect is breath tested at the scene using the BAT. Otherwise, the suspect is breath tested at police headquarters using one of the other BATs located there. During a checkpoint, the only procedural processing difference is there would be no driving violations, but the same field sobriety tests are conducted, etc.
After the person is arrested and placed in the BAT van or taken to headquarters, an implied consent advisory form is read. The person's Miranda rights are always read before the intoxication report because of the questions asked on that report (e.g., were you operating the vehicle, where were you going, where were you coming from, have you been drinking, how much, are you a diabetic?). A DUI report is also completed at some point and an arrest report.
If the processing of the suspect has been done in the field (as opposed to at police headquarters), then the suspect is transported directly to the Department of Corrections (which is a county jail, separate from police headquarters). If the person fails the breath test and requests a blood test, the person will be taken to a hospital and then to jail.
Release procedures vary, but if the arrestee can get a signature bond, he or she can call someone who is at least 18, has a valid driver's license, and has not been drinking. That person must report to police headquarters and sign a form to take custody of the arrestee and must agree to watch the individual for six hours during which time that individual will not allow the arrestee to drive or be out in public. If the person who has taken custody of the arrestee cannot control him or her, it is that person's responsibility to call police and report that the arrestee is out; if the police find and arrest the person again, he or she is taken to jail and will not get out until an appearance is made before a judge. If there is no one available to take custody of the person, then there is at least a six hour hold, after which time the person is released on his or her own recognizance if a cash bond is not required.
Passengers are usually not interviewed unless, for example, the driver does not have a license with him or her; then the officer might ask the passenger what the driver's name is and other information to verify the driver's statements. The vehicle would be checked for open containers. In a crash, witnesses would be interviewed and asked what they saw along with their name, address, and telephone number. In a fatality, injury or major crash, officers will attempt to get written statements from witnesses either at the scene or the next day.
A DUI arrestee is asked for permission for a police officer to legally park and lock the vehicle. The keys are normally returned to the arrestee and are kept with his or her possessions. If the person will not give permission to park the vehicle, a A"non-preference" wrecker will be called and the vehicle will be towed.
Reporting forms to be filled out on a "typical" DUI arrest for city charges are: a DUI intoxication report, breath test protocol, the card from the BAT, entry in a DUI log, arrest report and supplement report, one or more tickets (e.g., speeding, DUI, driver license violation). If state charges are being filed, then an offense report and supplement report would have to be completed. If there are felony charges (third DUI) then state charges would have to be filed. An NCIC check would have been run to check for any wanted charges and a driver license search to check if the license is valid; the dispatcher would let the officer know if any previous DUI charges are on the record. If prior charges are discovered at a later date, the charges can be amended from city to state. In those cases, the District Attorney will drop the city charges and file state charges.
The implied consent forms have a checklist which provides the date of the stop, reason for the stop, and if the driver license was valid at that time. The arrestee gets a copy of the form which serves as a temporary driver's license for 30 days. If the person wants to request a hearing, there are instructions on the back of the form and a perforated bottom section, which can be torn off, completed and mailed to the Department of Motor Vehicles to request a hearing. The person has 10 days if they hand-carry the form to the DMV, and 13 days if the form is mailed, in which to request a hearing; otherwise 30 days after the stop, the driver's license is automatically suspended.
There are three copies to the notice of suspension, the violator gets one, the other two are turned in by the officers to the traffic division secretary who sends in all the paperwork to the DMV.
Arrest and Processing Time. As far as processing paperwork, before implied consent, a DUI offender would require approximately an hour of an officer's time; after implied consent, the time required jumped to 2 hours, but currently approximately 90 minutes is required to process an average DUI offender.
Prosecution Support. The Department of Corrections has a schedule of court dates and they set up the date with the arrestee for the preliminary hearing or the plea days. The officer contacted was not certain, but thought the time frame might be a month or so and could be several months (especially if going to trial). If a case goes to municipal court, the officers might meet with prosecutors beforehand to discuss the case, but usually only if there was a serious crash. If a case goes to trial, which is not often, then officers are most likely asked to testify as to probable cause for the stop, field testing, reliability of equipment, and the videotapes are shown. Whichever officers had been involved would testify, and reportedly most officers do a good job. It is mandatory for officers to show up at any court proceedings for any arrests. Most driver license hearings last 15 minutes, but one defense attorney in Topeka brings in a court reporter and he has kept officers as long as 1 2 - 2 hours. Implied consent hearings and administrative hearings both take place at the Department of Motor Vehicles. A driver's license might be suspended with the case going to trial in municipal or district court, but even if the person charged wins the case, the license could still be suspended by the administrative hearing.
Handling Juvenile Cases. The arrest procedures are the same for juveniles, but instead of taking them to jail or a juvenile facility, police will attempt to contact the parents, the juveniles will be released to the parents' custody and then they will have to set up their court date. If the juvenile is to be incarcerated, the person interviewed was uncertain, but thinks he or she is first transported to a hospital to make certain there is no danger of overdose on the amount of alcohol consumed, and that the juvenile is given a clean bill of health, after which the juvenile is transported to the youth center.
The city court handles very few juveniles, even though technically they can handle anyone over 14 years of age in the city. They have a problem of what to do with juveniles if convicted because the city has to pay to house any child in the youth center which costs over $200 a day. Ninety percent of juveniles arrested for DUI end up going through the District Attorney's office. Most juveniles the city gets are diversion eligible and they enter the diversion program. Most juveniles arrested for DUI are 18-21 years of age and are only charged with the DUI and not other charges in addition to the DUI such as underage drinking. This is one of the city prosecutor's "pet peeves" because the officers think the DUI is the most serious charge they can make, so why file other charges; but if there are other charges filed, it gives him more ways to negotiate. (The prosecutor heard right before the interview that the "zero tolerance" law for juveniles - under 21 years of age - passed at 0.02.)
Charging Process. We had two contacts with prosecutors in Topeka, one with a city prosecutor and the other with a county prosecutor who handles DUI charges for the state.
The city prosecutor tries between 1,200-1,400 DUI cases a year; he (the city) gets the generic DUI (someone is speeding, gets pulled over, crashes). The county gets felony DUIs (2nd or 3rd conviction, or felony driving while license suspended, drugs in the car). DUIs are "the biggest single thing they do in the city." The prosecutor has been prosecuting in that office for five years and there has always been a policy not to reduce DUI charges; Kansas has a prohibition against plea bargaining DUIs. If they have a case bad enough that they are considering amending it, they will dismiss it. And they have one of the lowest DUI dismissal rates in the state (5%). Normally the offenders plead guilty to the DUI, it is taken to trial or the DUI charge is dismissed. They don't amend to reckless driving, and if they tried, the judge there would not allow it. Last year (1995) he thinks they had over 400 diversions, and about the same number of convictions. He reports a significant number of people never make it to court but go out on warrant and are not resolved, but of the cases handled, approximately 85% plead guilty or go to diversion, a small percent get dismissed and a small percent are found not guilty at trial.
Every once in a while there is a bad case; periodically, there is a technical fault where the officer or someone involved "screwed it up" (did not provide the implied consent advisory, the machine was not working properly). They've had a few cases where officers think the person is DUI following a crash because they smell alcohol, the officers write it as a DUI, and when the tests come back (which could take a month because blood tests are run by the Kansas Bureau of Investigations), there is no proof of impaired driving. Or there was a crash which was not the fault of the person suspected of being under the influence (example given was someone being rear ended while sitting at a stop sign), the person refuses a breath test and does not do field sobriety tests, so there is no case against them. A case like that they would likely take to trial, but that is the type of case they might lose.
State (actually county) versus city charges depend on if the offender is charged under state statute versus city ordinance; most city ordinances in Topeka mirror the state statute verbatim. A third DUI in 5 years could be enhanced to a felony charge which would be a state charge; city would only be doing misdemeanors. When it comes to a DUI, an officer in the field has to make a relatively quick decision as to if it will be a state or city charge, and this decision can be based on faulty information. They must rely on information from dispatch which relies on coded information from a computer for motor vehicle records which might not be up-to-date. Also, if the person at dispatch is not proficient in reading the coded information, errors could be made. And, an out of state DUI might not be detected until later.
If the city prosecutor discovers after receiving the case that it should be a felony charge, it could be sent to the state's prosecutor, but there are also times when the city prosecutor would prosecute a third time DUI offender; just because a felony charge is not brought, it does not been the person will not be doing significant (jail) time. "You can argue the statute and how it should be interpreted, but if it's charged as a misdemeanor and at sentencing, it's found to be the third offense, the courts cannot call it a felony." The penalties for second and third DUI offenses are very similar in Kansas; an argument can be made that the mandatory minimum for a third offense be imposed even though it is a misdemeanor charge. It will not go on the person's record as a felony, but an argument could be made that the judge has to impose the minimum based on a third time offense.
And there are some economics involved, too. In Topeka there is no city jail; so, anytime someone is sent to jail, the city pays for it. There is now a house arrest program, which is "excellent" and also it generates money; the offender pays for the program. So sometimes the decision as to where to prosecute is made based on economics. Shawnee County does not have a house arrest program, so felony offenders go to jail. Sometimes, if the facts on a case look like he could lose, and in his mind, he thinks the client is deserving, the county attorney will dismiss and ship the case over to the city with the understanding that the offender will plead guilty there and be put on house arrest. That way the case is not lost and the offender does not lose a job.
DUI charges are not reduced because Kansas statute does not allow it; prosecutors can only go forward with a DUI charge or dismiss it. Other charges filed with a DUI can be dismissed for a plea of DUI. "Given a defendant doesn't run" the time from arrest to charging would be from 1-3 months in county court. That's the time it takes to do the background check and get the person charged. If it=s a misdemeanor charge, a summons will be issued; if a felony, a warrant for the person is issued. If the person has not run, he or she will typically be picked up fairly quickly. The summons will go to their address and they will have an appearance in 30-60 days (usually 30). The person will be given another 2 weeks if they need to get an attorney. A trial date will be set for about 2 months after the appearance date. Sometimes "for a dead bang loser" an attorney will continue it once just to drag it out a little bit. If they have a defense, the attorney will get a little more involved. If there is a test result, they will probably file a motion to suppress. There would be an evidentiary hearing on that separate from the trial. So pick-up date (arrest) to conviction date might be nine months in a county case. A small percentage flee, but those are usually individuals with problems other than DUIs. Arraignments are done in the court involved (either city or district).
Topeka has a DUI diversion program. For a person to quality there could be no crash involving injury, the person must have been properly licensed and insured at the time of arrest, no prior DUI diversion, no prior drug conviction. The Alcohol Safety Action Project (a function of Kansas court services) identified as ASAP does the interviews for the offenders; the requirements are "black and white" and ASAP makes the call unless they have one that is close; then they will ask for the prosecutor's opinion. The diversion itself is for a 12 month period. There are standard conditions; special conditions can be added based upon the facts of a particular case. (Alcohol education is always required, sometimes inpatient and outpatient treatment and AA meetings are involved.) The person's licensed driving privileges are restricted by the state.
Arraignment. The city prosecutor reports pretrial motions on a generic DUI are rarely filed (he estimates only about 15 a year). If filed, they are mostly motions to suppress for lack of probable cause to pull the vehicle over, or no probable cause to place the individual under arrest for DUI after being pulled over (e.g., the officer had no reason to think the person was drinking, so should not have asked the person to perform the field sobriety tests). Periodically they receive motions to suppress based on defects in the breath testing machine which are "very rarely, if ever, successful." Also, periodically, they will receive motions claiming that the arresting officer did not supply the person with the proper paperwork (few and far between). The city prosecutor estimates 20% of persons arrested for DUI are represented by counsel. The average DUI individual will prefer to handle it on their own and save money; they are not required to have council. There are 10-15 attorneys in Topeka who handle 90% of the DUI cases.
Trial. Of the small percentage of DUI cases that go to trial, the city prosecutor estimates approximately 40% plead guilty right before the trial when they discover all the paperwork is in order and the police officers are present. Certain attorneys will use a municipal court trial as a sort of discovery trial. If they lose in municipal court they have the right within 10 days to appeal to district court for a new trial (a trial de novo). The attorneys use municipal court, where there are no juries, to find out all the facts and then hope they can win the case in district court in front of a jury. A couple of attorneys in Topeka do this, but it is rare in DUI cases.
The county prosecutor reports a high percentage plead guilty to DUI (approximately 80-85%), 5-10% try and 5% he does something with (decides it is a weak case and dismisses; decides he could lose at trial and the person does not really qualify for diversion, but he does not want to lose the person so he sends him or her to diversion; or he sends the case over to the city). A high percentage plead guilty because the police do a good job. He files cases where he knows there are problems with the case, but he believes the person was driving under the influence, and the case won=t often be challenged.
After an individual is arrested for DUI in Topeka and taken to jail (and they all go to jail), that person is given a court date to appear (always on a Tuesday morning for city court) before being released. Those who come (and he reports a lot do not show up) must see the judge for a short arraignment. The judge talks with each person individually and asks if he or she understands the DUI charge and asks if the person agrees with the charge. If the person agrees, that person is told to report to the probation department for an evaluation to determine if that person is eligible for the diversion program. The person returns to court at a later date and will either enter the diversion program or will be sentenced. A certain number of people will walk in and say they want to retain an attorney; the judge will give them a new date to appear (about 30 days). They and/or the attorneys must appear at the new date; a certain number of people charged with DUI send their attorneys in their place. The judge sets all of the trials in an effort to efficiently use trial time. This is done so that the judge can question all parties to make sure the prosecutor's office has been contacted first to try and work out some arrangement. After these efforts have been exhausted, a trial date will be set.
Elements of Offense. The city prosecutor reports they have good police officers working drunk driving cases. His elements of offense (other than positive BAC and he reports not many fight a positive BAC) are field sobriety tests (e.g., were they asked to perform field sobriety, were they orderly, how did the person appear?). Officers are told the more field sobriety tests they give, the better; the more ammunition for the prosecutor. The prosecutor reviews the offense report on cases going to trial and on those cases where he is contacted by attorneys. Police officers complete a lengthy offense report and this is the one element the prosecutor refers to heavily; time does not permit reviewing all of the paperwork on every case) Videotapes have been used, in the past, mostly in the DUI room which might include field sobriety tests. Videotapes are usually only used if the case goes to trial; most defense attorneys don't care if they are used. Defense attorneys rarely argue probable cause for lower BACs. If someone blows an 0.08, the attorney will come before the judge and try to argue there could have been a deviation. The prosecutor reports the judge will not allow this, the legislature says 0.08 or above and the judge will not deviate. Also, he reports the police officer we contacted is very good at testifying, and this officer gives the person the benefit of the doubt when he sets up the machine.
The county prosecutor reports elements of a successful offense other than positive BAC are positive ID (person has to have been driving), the person has to have been under the influence of alcohol to a degree that he or she was driving unsafely or a positive BAC 0.08 or higher, and the person had to have been driving in Shawnee County, Kansas. If there is a breath test, the testing officer must testify in court. If he knows the officer and the officer has testified before, the prosecutor only asks the officer a couple of questions right before the trial date. If there was a fatality, he will have talked with the officers more often and will be more familiar with the case. Other than that, it is the same foundational questions over and over again. His case load to too heavy and does not allow much time to review and prepare. He handles vehicular homicides, driving while suspended felony cases, driving while habitual felony cases, car stops involving drugs and DUIs. He will handle 400-500 DUI cases alone in 1996 and there are more of the other types of cases. He uses a couple of legal interns to assist, but is responsible for all of the cases.
Elements Contested. Most of the cases which go to trial in city court involve DUIs where there is no breath test (refusals). The cases then revolve around whether field sobriety tests were given, claims of prior injuries so the person could not perform field sobriety tests, sometimes weather conditions, traffic, distractions, etc. Attorneys will argue all of these points. And then there are individuals who have refused to do anything, and the defense attorney will argue there is no evidence of impairment. The prosecutor reports he wins more often than he loses on these cases, but he does lose his "fair share." It kind of depends on the individual; even though they refused the breath test, a lot of these people were caught driving down the middle of the road, straddling both lanes, or a multitude of other things that can be used against them. He estimates he wins 60% of these types of cases and loses 40%. Luckily these cases are few and far between, most people take the breath test, or at least the field sobriety tests.
Elements of a trial likely to be contested in county court are, when a person refused any test, the defense attorney will argue the client was not under the influence. If there was a test, then the test is likely to be contested; whether it should be admitted and its accuracy. For the lower BACs, he reports the better defense attorneys will argue the accuracy of the machine because it has a 5/1000 margin of error. Hopefully, on those cases there is "some good driver action" (where officers can testify that the driver was not in control.) But generally there was a driver who was stopped for speeding and then was found to be under the influence. Generally only KHP (Kansas Highway Patrol) officers can provide video tape of field sobriety tests because they are the only ones with cameras in all of their cars. For a bench trial, a video is not that important, but a jury has a different view.
Appeal. Defendants have 10 days from the date of sentencing to appeal Municipal Court convictions. Within 10 days they have to file notice with the district court of whatever county they are in, and must pay the $59 filing fee. Then the case starts from scratch in District Court which is part of a state-wide court system, where they are arraigned and they can have a jury trial (again, jury trials are not possible in Municipal Court). The city prosecutor reports this does not happen often; he estimates about 25 cases a year are appealed (this small number includes all types of cases, not just DUIs). There are no issues involved because it is a brand new trial and everything starts over again.
Appeals in county court must be filed within 10-20 days; most attorneys there are looking for an appeal bond so their clients will not go to jail. Double Jeopardy has also been used to appeal recently.
Sanctions - Judicial. There are not prescribed sanctions for different BAC levels in Kansas, but rather the person=s history is factored in (e.g., number of prior DUI offenses). Municipal courts operate under the Kansas statutes which give the maximum penalties a first, second, third, etc. offender can receive. There are parameters they must stay within, but no charts.
In Kansas district courts, for felonies, there are sentencing guidelines. DUIs are "off grid" when it comes to felonies; meaning sentencing guidelines are not followed. That is a plus because DUI felonies are "low-level" felonies, and none of these people would go to jail if the sentencing guidelines were followed; that's why DUIs were moved off grid. Offenders have to go to jail for a minimum of 90 days. On the misdemeanor DUIs (first and second offenses), there are statutory minimums as well, but that has nothing to do with sentencing guidelines. On the first offense, 48 hours up to a maximum 6 months; second is, by statute, "minimum 90 days paroled to five after the person becomes enrolled in treatment," and maximum of one year. The county prosecutor reports second time offenders get five days; judges "are pretty good about not just rubber stamping the minimum and letting them go." On first time offenders, the minimums are imposed 98% of the time, unless the person had a prior DUI six years before and another six years before that (DUIs stay on the record 5 years). Again, most of the first time DUIs divert, and those that don't, do the minimum time.
On second offenses, the judges in Topeka look at the offender's history, and the recommendations of the pre-sentence investigation rider. State statute requires that a pre-sentence investigation report be done and provided to the court; DUI is the only misdemeanor for which this report is a requirement. The judge peruses this report and then makes a recommendation. For all other misdemeanors in Kansas except for DUI, sentencing is immediate. Reportedly, judges also do a good job of not rubber stamping a third offense, although that carries a "pretty good penalty" already, 90 days jail. Most judges will impose the maximum and then entertain motions to modify after 90 days.
There is no house arrest program planned for Shawnee County. The county prosecutor does not like house arrest, he favors a work release jail program but that would cost the taxpayers and the county money and he knows they won't spend money on it. He is in favor of work release because he believes DUI, more than any other crime, cuts across the socio-economic groups and there are a lot of employed people with good jobs who get DUIs.
House arrest was implemented by the main DUI judge in the municipal court. Second and third offenders who are facing significant amounts of jail time may be eligible for house arrest if they are employed, or are full-time students, or are primary care givers. These individuals must have a telephone, be able to pay for the program, etc. They are sentenced to serve 2-5 days in jail, they immediately must report to probation (located in city hall) and they must provide probation with a copy of their work schedule. They are hooked up to a monitoring machine on their telephone which has a video camera and a breath tester. The person is called between 2-5 times every night (or day depending upon their schedule). They must stand in front of the machine, blow into the machine which registers if they have any alcohol on their breath.
Probation personnel can confirm the person=s identity by the video camera. If alcohol registers on the person's breath, the judge will have the person picked up and brought into municipal court. Sometimes the judge will send the person back to jail, sometimes not. The prosecutor reports it is a good program but at times it gets abused. Part of the reason it was set up was to cut the costs the city had to pay to house DUI offenders in jail (over $70 per offender per day). The city prosecutor does not agree with the use of house arrest in some cases because he believes some of these people are so chronic they need to be in jail. But the judge makes the final decision on who gets house arrest and who goes to jail. Juveniles probably would be treated the same, but he does not ever recall having a juvenile second or third offender.
Any conviction or diversion information is sent by municipal court staff to KBI and the KDOT (for driving record purposes), and the municipal court keeps its own records.
When asked if treatment is ever used as a sanction, the city prosecutor replied not as a sanction, but as a requirement. On a second offender, it is mandatory the individual receives either inpatient or outpatient treatment from a certified alcohol treatment agency. If they do not comply, their driving privileges are suspended until they do comply. Also, the person=s probation can be revoked and they can go to jail. The probation department is responsible for tracking compliance; they send a letter to the state which immediately suspends the license and notifies the prosecutor who files a motion to revoke probation or diversion. On a third offense, the person is required to go into treatment and it is a violation of probation if he or she does not comply.
Sanctions - Administrative. Prosecutors do not get involved with license issues but apparently for a first time DUI offense, the person loses the license for 30 days and then it is restricted for 330 days following that (to and from work, to court, to alcohol school, etc.). Persons who refuse the breath test lose their license automatically for one year as do second and third offenders. The city prosecutor believes 90% of administrative hearings result in the suspension being upheld.
Comments. The city prosecutor believes their process works fairly well, although he is overwhelmed with work. He handles 35,000-40,000 tickets a year (mostly speeding) including the 1,200-1,300 DUIs. There are two full-time prosecutors, but he is the only one to go to court. The prosecutor is in court almost all day every day. They have two part-time law school interns.
The county prosecutor does not think people realize the volume of DUI cases. He said a decision must be made on what issues to enforce; there is not enough "people power" to enforce everything. He feels overwhelmed with the volume and he knows other prosecutors who are overwhelmed. He would keep the level of DUI enforcement up; however, people don't realize the judicial system is bursting at the seams. Some sort of planning or advisory counsel beforehand might reduce this problem. His view of prosecution is that they should slow down a little and make sure they do it right as opposed to weeding through a multitude of cases to find the few which can be successfully prosecuted.
Topeka police anti-DUI officers say they are working to broaden the training of the other officers, many of whom have been required to ride in the BAT van for 8-24 hours to gain experience and exposure to the van and the equipment. The officer we contacted feels confident that not many of their DUI cases are being plea bargained or dropped. When an officer does find out that a case has been dropped, memos are written to the administration to point out what has happened.